page_title: Montana Water Court
section_title: Water rights under the 1889 constitution
hierarchical_section_title: Montana Water Court / History of water rights in Montana / Water rights under the 1889 constitution
caption_attribution_description: Aerial view of oxbow wetlands and the Milk River on McNeil Slough Waterfowl Production Area Credit: USFWS
context_page_description: The Montana Water Court is a court of law in the U.S. state of Montana which has jurisdiction over the adjudication of water rights. The filing, verification, recording, and enforcement of water rights in the Montana Territory and, later, the state of Montana were considered highly inadequate until 1972, when a new state constitution required a more robust, highly centralized water rights legal system. Implementation of this system led to the establishment of the Water Court in 1979, after six years of mixed success with an administrative solution. The Water Court consists of a Chief Water Judge, Associate Water Judge, and four District Water Judges, but most work is handled by special masters. The process of identifying, verifying, and adjudicating water rights is a complex one, and budgetary and personnel issues have slowed the work at times. Appeals from the Water Court are made directly to the Montana Supreme Court.
  The state finished verifying all water claims in 2015, and the Water Court will finish issuing final decrees in all hydrological basins by 2020.
context_section_description: Montana became a state on November 8, 1889. Article III, §15 of the 1889 constitution provided that "The use of all water now appropriated...shall held to be a public use." Although a number of attempts were made over the next 90 years to create a centralized water rights system, beginning in 1903, voters in the state feared the creation of a large state bureaucracy and the legislature defeated every attempt.
  In 1908, the Supreme Court of the United States held in Winters v. United States, 207 U.S. 564 (Sup.Ct. 1908).  that Native American tribes had reserved "adequate water to satisfy the purposes for which the Reservation was created". Moreover, it was the duty of the U.S. federal government to protect these water rights. This created what are known as "Winters rights", of federally-reserved Indian water rights. The case was of particular importance to Montana because it involved the Fort Belknap Indian Reservation in the north-central part of the state.
  In 1921, the Montana Legislature adopted a new surface water rights law. This legislation recognized that some streams might be "fully adjudicated"; in other words, all the water may be appropriated by existing users. Any new individual wishing to appropriate water from a fully adjudicated source had to obtain approval from a Montana District Court first. As no stream in the state was ever fully adjudicated, this process was never activated. Moreover, decentralized and haphazard record-keeping as well as ongoing utilization of use rights meant that it was almost impossible to determine if a stream was fully adjudicated, even if all water rights on the source were allocated. Indeed, it is possible that water rights were established on fully adjudicated sources. The Montana Supreme Court also recognized the "first in time, first in right" doctrine of water rights in 1921 in Mettler v. Ames Realty Co., 201 P. 702 (Mont. 1921). 
  Winters rights were further defined in 1939, when the U.S. Supreme Court held in Powers v. United States, 305 U.S. 527 (Sup.Ct. 1939).  that Native American water rights existed independent of state law. This case had arisen on the Crow Indian Reservation in south-central Montana, and involved land now owned by non-tribal members. The federal Ninth Circuit Court of Appeals extended Powers in United States v. McIntire, 101 F.2d 650 (9th Cir. 1939). , when it held that title to water rights reserved to tribes could be disposed of only by Congress. This case involved the Flathead Indian Reservation in the state's northwestern corner. The same year as Winters, the Montana Legislature declared it was the policy of the state to fully adjudicate all the waters of the state as soon as possible. But no action was taken.
  The state legislature took a step toward rectifying the situation in 1947. The legislature enacted a statute which gave the state engineer the authority to adjudicate water rights and settle disputes. However, there is no evidence that this discretion was ever exercised. A second step was taken in 1961 when the legislature passed the state's first water rights act, and barred any new use right claims after January 1, 1962.
  In 1952, Congress enacted the McCarran Amendment, which permitted the federal government to waive its sovereign immunity over water rights. This waiver could be granted only if the state water rights proceeding was inter se.
  The Montana state legislature enacted a groundwater rights claiming law in 1961. The law mimicked the 1885 filing right system. Because the 1961 legislation suffered from the same faults as the 1885 legislation, water rights established under the 1961 groundwater law proved just as difficult to verify, examine, establish, and enforce.
  Montana voters approved the creation of a state constitutional convention in 1971 to update and revise the 1889 constitution. By this time, water rights in the state were almost impossible to verify or enforce. The Montana Supreme Court had held in State ex rel. McKnight v. District Court, 111 P.2d 292 (Mont. 1941).  that inter se proceedings were not required when adjudi
caption: The Milk River in Montana, subject of the U.S. Supreme Court decision in Winters v. United States.
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